A Florida district court judge recently dismissed a purported class action lawsuit brought under the Telephone Consumer Protection Act (TCPA) against three affiliated companies involved in the collection and distribution of blood plasma. Plaintiff donated blood plasma through the defendant companies and supplied his cell phone number when filling out his “new donor” paperwork (which did not explicitly state that phone number would be used to send text messages). The defendants later sent plaintiff (and other donors) two text messages using an autodialer, first notifying him that he would be receiving text messages and then asking for him to donate plasma. Plaintiff argued that these text messages violated the TCPA’s prohibition on using an autodialer to send a text messages to a cell phone number without prior express consent. The court disagreed, finding that the plaintiff failed to state a claim because he admitted to giving his cell phone number to the defendants and thus gave “express consent.” The court based its decision on a 1992 FCC order, in which the agency stated that “any telephone subscriber who releases his or her telephone number has, in effect, given prior express consent to be called by the entity to which the number was released.” The court also noted that donors are not required to provide their phone number to donate blood, and the paperwork did not specifically request a cell phone number. The court separately found that the text messages at issue did not constitute a “telephone solicitation” under the TCPA because the messages did not encourage the plaintiff to purchase, rent, or invest in anything. Rather, the messages were an offer to pay the plaintiff for making another blood donation.
Tip: While the court dismissed the plaintiff’s claims in this particular case, under the recently amended TCPA regulations, it is important to note that prior express written consent is now required to send marketing text messages. Our previous post on the recent updates to the TCPA regulations, which describes the specific requirements for obtaining prior express written consent, can be found here.